Completion of the First UPR of the United States: Statement by Harold Hongju Koh

Harold Hongju Koh and Daniel Baer at Conclusion of First UPR of the United States

Harold Hongju Koh

Legal Adviser, U.S. Department of State

Statement upon adoption of Universal Periodic Review Report

United Nations Human Rights Council, Geneva

March 18, 2011

(As Delivered)

Good afternoon. On behalf of the United States of America, I am honored to return to Geneva to conclude our first Universal Periodic Review. With my colleagues from the State and Justice Departments, I thank the President of this Council, the many states that participated constructively in the Working Group for our UPR, the Troika — France, Japan, and Cameroon — the Secretariat staff, and in particular, our own civil society, for your hard work and many, many contributions to our review.

President Obama has said of our country’s recent history, “At the core of the civil rights movement, . . . there is a voice that is best captured by [Martin Luther] King, which says that we are American, and that our story is America’s story, and that by perfecting our rights we perfect the Union.” This voice epitomizes a fundamental American belief, that “the society as a whole is transformed for the better” through our work to protect and promote the civil and human rights of its least powerful members. That tradition explains why I – the child of Korean immigrants who came to America to search for a better future – sit before you today to represent our country.

We have found the Universal Periodic Review a useful tool to assess how our country can continue to improve in achieving its own human rights goals. Civil society has been involved in each and every step of our UPR: from an unprecedented series of a dozen listening sessions that involved representatives of local and national civil society organizations as well as hundreds of citizens from communities across our country, to the Town Hall gathering for civil society held here last November in Geneva, and since then our Federal agencies have held numerous meetings with civil society to discuss our response to the many recommendations.

As a result, this UPR has been a uniting event. One civil society coalition told me how they first heard about the UPR from a human rights lawyer; they proceeded to develop a joint submission which they presented to us; and their UPR work led them subsequently to work together on other related issues. The story of one NGO is an inspiring story of how this process brings civil society together, as well as promotes an active and ongoing dialogue between government and civil society.

Civil society groups hold government to our values by asking hard questions and making tough recommendations. We welcome your recommendations and thank you for them; for that is how we can learn and improve. We value our conversation with those NGOs who were able to make it to Geneva this week. We are glad to see some of you here, with the formal speaking role the UPR affords you in this session.

Among the more than one dozen Federal agencies that have made essential contributions to our UPR submission, let me note in particular the Civil Rights Division of the Department of Justice, represented here by Deputy Assistant Attorney General Julie Fernandes. Reflecting its historic role in implementing our human rights obligations through enforcement of U.S. civil rights laws, the Civil Rights Division has played a critical role at every step of our UPR.

When we presented our initial report last November, we received 228 recommendations. We have considered the substance of each and every one of the recommendations, even those whose tone suggests they were not offered in a constructive spirit. While our written submission provides a specific response to each recommendation, in my time today, let me discuss the ten thematic areas these recommendations cover, and review significant changes that have occurred since our report last November.

First, we support many recommendations concerning civil rights and discrimination, including those from Ghana, Morocco, Costa Rica, Qatar, and Indonesia.

Many members of civil society – and such states as Uruguay, Australia, and Israel – asked us to do more to address discrimination against lesbian, gay, bisexual, and transgender individuals. Our government has taken important recent steps in this regard, notably enactment on December 22, 2010, of the Don’t Ask, Don’t Tell Repeal Act, which will allow gay men and women to serve openly in our military, strengthening our national security while upholding the basic equality upon which our nation was founded.

The United States continues to strive vigorously to ensure justice and equality for all Americans. In response to the mortgage crisis, the Civil Rights Division established a new Fair Lending Unit, to address a wide range of allegations of discriminatory conduct. The Department of Justice also has stepped up its vigorous enforcement of laws prohibiting discrimination in areas including voting, employment, public accommodations, and education.

The United States continues to prosecute violations of our Federal hate crimes law, including a recent indictment involving a racially motivated assault of a Native American victim with a developmental disability.

In a second area, criminal justice, the United States continues to work – as recommended by Sweden, France, Haiti, Thailand, Belgium, Algeria, and others – to ensure protection under our Constitution and laws of the rights of those accused of committing crimes and held in prisons or jails. We set and enforce high standards of conduct for law enforcement personnel. In New Orleans, the Civil Rights Division recently secured convictions against police officers who engaged in misconduct in the wake of Hurricane Katrina. Yesterday, the Justice Department announced its findings that the New Orleans Police Department has engaged in patterns of misconduct that violate the Constitution and Federal law. Its problems include excessive force and policing inconsistencies based on race, ethnicity, sexual orientation, limited English proficiency, and gender.

About 25 countries, including close friends and allies, made recommendations concerning administration of capital punishment by those governments within our system that still apply it. Domestic civil society also raised capital punishment as an issue of concern. While we respect those who make these recommendations, as I noted last November, they reflect continuing differences of policy, not differences about what the rules of international human rights law currently require. To those who desire as a matter of policy to end capital punishment in the United States – and I count myself among those — I note the decision made by the government of Illinois on March 9 to abolish that state’s death penalty.

In a third area, the rights of indigenous peoples, the United States recognizes past wrongs and has committed itself to working with tribal governments to address the many issues facing their communities, including two particular recommendations. First, the importance of tribal consultation was repeatedly stressed during our UPR listening sessions with tribal leaders and civil society. Second, reflected in recommendations from civil society and tribes and echoed by a number of countries including Finland and New Zealand, was that we support the UN Declaration on the Rights of Indigenous Peoples.

At his second White House Tribal Nations Conference last December, President Obama addressed both concerns when he announced the United States’ support for the UN Declaration on the Rights of Indigenous Peoples, and issued a statement detailing U.S. support for the Declaration and ongoing work on Native American issues. His announcement capped a year in which the President had directed that consultations with tribal officials be reinvigorated throughout the U.S. Government.

Civil society and countries including Malaysia, Mexico, and Norway made recommendations to us concerning a fourth area: national security. As I explained in November, the United States takes its obligations under international law seriously, and abides by all applicable law in its continuing armed conflicts against Al Qaeda, the Taliban, and associated forces, including those laws respecting humane treatment, detention, and use of force. It is legal under the laws of war to use detention to prevent adversaries from re-engaging in the conflict, but we do not — and we will not — tolerate torture or inhumane treatment of detainees in our custody, wherever they are held.

Ireland, Switzerland and others made recommendations about the Guantánamo detention facility. As the White House indicated last Monday, President Obama remains committed to closing that facility, although that will clearly take more time, due to restrictive legislation and complex politics. As this effort continues, we are committed to ensuring that all practices on Guantánamo fully accord with international law. On March 7, 2011, the President announced five steps reaffirming the framework first outlined in his 2009 National Archives Speech, to ensure we have a lawful, sustainable, and principled regime handling Guantánamo detainees consistent with our national security interests and our national values. The first element is a continued commitment to civilian trials in Federal courts: as the President recently stated, “I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III courts – to ensure that our security and values are strengthened.” The second element is a resumption of prosecutions by military commissions, which had previously been suspended. Third, we continue efforts to lawfully and safely transfer detainees from Guantánamo. Fourth, the President formalized a process of periodic review, to ensure that individuals on Guantánamo are detained only when both lawful and necessary to protect U.S. security. Fifth and finally, we reaffirmed our commitment to humane treatment of detainees in our custody by announcing that the United States will seek advice and consent to Additional Protocol II of the Geneva Conventions and will also – out of a sense of legal obligation – adhere to the humane treatment and fair trial safeguards in Article 75 of Additional Protocol I in international armed conflicts.

In the context of counter-terrorism, a number of U.S. civil society groups and countries – such as Egypt and Algeria – have raised concerns regarding discrimination against Muslims. The United States agrees that the problem of terrorism is not unique to members of any religious or ethnic group. Our government does not support attempts to treat entire communities as a threat to our national security, based solely on their race, religion, or ethnicity.

In a fifth area, immigration, we accepted many recommendations from civil society and from countries including Guatemala, Mexico, Brazil, Ecuador, Vietnam, Switzerland, and the United Kingdom. The contributions of immigrants have been an important element of every chapter of American history. While challenges remain, we also know that people from around the world continue to arrive on our shores in search of refuge and opportunity. What attracts immigrants to the United States — like my own parents, and those of many others in our delegation – is the promise of universal values embodied in our Constitution, with our continuing efforts to ensure that we deliver on that promise.

In keeping with commitments relating to our status as party to the 1966 Protocol Relating to the Status of Refugees, our government is reviewing its handling of emergent refugee cases to improve accessibility and efficiency in the program. Last December, the Department of Homeland Security improved accessibility of care for immigration detainees, by simplifying the process for detainees to receive authorized health care. And in January, the Department improved its procedures for handling, investigating, and correcting complaints regarding all kinds of civil rights issues. In 2010, the Department of Homeland Security provided 10,000 victims of crime and over 9,000 of their immediate family members with the opportunity to work and live permanently in the United States.

In a sixth area – economic, social, cultural, and environmental rights — as civil society and countries including Thailand, Norway, Morocco, and Brazil recommended, local, State, and Federal governments in the United States continue to protect the environment in which we live and to take significant action to address what President Roosevelt called “freedom from want.” Recent Federal department and agency actions include: (1) the Department of Education’s February 2011 announcement of an Equity and Excellence Commission to examine disparities in educational opportunities and to address the needs of children in distressed, high-poverty communities; (2) grants from the Department of Health and Human Services to support health centers around the country and improve to health care access for the uninsured; and (3) two recent settlements from the Environmental Protection Agency that would require new source performance standards for greenhouse gas emissions.

In a seventh area — workplace protections and the fight against human trafficking — the United States has long been a leader. We support several recommendations that concern trafficking, including one from Moldova. The U.S. Customs and Border Protection agency launched the “No Te Enganes” (Don’t Be Fooled) media campaign in Guatemala, El Salvador, and Mexico, which offers information on the dangers of human trafficking and advises how to avoid becoming a victim. Last year the Department of Justice prosecuted its highest annual number of human trafficking cases ever, including one involving more than 400 victims. We continue to address worker protections in countless ways, including through the President’s Equal Pay Taskforce to strengthen our response to wage differences between men and women, the Justice and Equality in the Workplace Program, and joint enforcement and education campaigns focused on civil rights of immigrant workers.

We are committed to an eighth goal as well — robust domestic implementation of our international human rights obligations. In this area, we support recommendations from Egypt, Norway, Austria, and Costa Rica. We particularly appreciated Austria’s recommendation that we continue consultation with civil society, which we have done and intend to continue including immediately after this presentation. Civil society has also helpfully advised us on how to take additional steps to inform local and state governments about our UPR.

As a party to several human rights treaties, the United States is bound to comply with its obligations at Federal, State, and local levels. Under our Constitution and federal system of government, the different levels and branches of our government ensure a comprehensive web of protections and enforcement mechanisms that reinforce our country’s ability to guarantee respect of human rights.

The ninth and largest group of recommendations that we received concerned ratification of treaties and other international instruments. Under our Constitution, treaty ratification requires approval not only by the Executive Branch, but also a two-thirds supermajority of our Senate. Despite this high threshold, the Administration has pushed for positive Senate action on a number of human rights and other treaties that afford humanitarian protection, and will continue to do so. As I have noted earlier, eleven days ago the Administration announced its intent to seek, as soon as practicable, Senate advice and consent to ratify Additional Protocol II to the 1949 Geneva Conventions. This responds to points raised by Germany, Russia, Cyprus, Austria, and Hungary. The U.S. also declared that, out of a sense of legal obligation, it will treat the principles set forth in Article 75 of Additional Protocol I as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

Tenth and finally, we address together a number of the recommendations made at the UPR that did not fit into other categories. As our written report says, we do not support recommendations that urged particular action in pending judicial cases. Nor do we support certain other inappropriate or politically motivated recommendations. Despite some countries’ desire to use the UPR for their own political ends, we have worked, with respect for the process, to consider the merits of each and every one of the 228 recommendations made to us, and to respond honestly to each.

In closing, we complete our first Universal Periodic Review proud of our heritage as a nation conceived in liberty, still dedicated to the proposition that all persons are created equal. At a time when so many nations are in turmoil, when so many are still struggling to achieve government of the people, by the people, and for the people, our constant and urgent challenge remains the same: to achieve a more perfect union and to promote a more perfect world. As a diverse democracy now well into our third century, the United States of America has been honored to present our response to the world’s recommendations. We now look forward to hearing the reactions of other countries and civil society.